In a recent episode of her podcast, Iona Italia expressed frustration about bad arguments against freedom of speech that she’s had to combat over and over again. I am therefore submitting something that is less of an article and more of a listicle: responses to some of the most common arguments against freedom of speech, and, where possible, suggestions for additional reading.
Assertion: Free speech was created under the false notion that words and violence are distinct, but we now know that certain speech is more akin to violence.
Answer: Speech equals violence isn’t a new idea. It’s a very old—and very bad—idea.
On campus, I often run into people—not only students, but professors—who seem to think they’re the first to notice that the speech/violence distinction is a social construct. They conclude that this means it’s an arbitrary distinction—and that, since it’s arbitrary, the line can be put where they please. (Conveniently, they draw the line based on their personal views: if it’s speech that they happen to hate, then it just might be violence.)
Ironically, the whole point of freedom of speech, from its beginning, has been to enable people to sort things out without resorting to violence.
A quotation often attributed to Sigmund Freud (which he attributed to another writer) conveys this: “The first human being who hurled an insult instead of a stone was the founder of civilization.”
Yes, a strong distinction between the expression of opinion and violence is a social construct, but it’s one of the best social constructs for peaceful coexistence, innovation and progress that’s ever been invented. Redefining the expression of opinion as violence is a formula for a chain reaction of endless violence, repression and regression.
Read more here: “Why It’s a Bad Idea to Tell Students Words Are Violence,” by Jonathan Haidt and Greg Lukianoff, The Atlantic.
Assertion: Free speech rests on the faulty notion that words are harmless.
Answer: No, it doesn’t. If free speech was not powerful there would be no need either to protect it OR to ban it. It’s not surprising that free speech can be harsh, since it’s meant as a replacement for actual violence!
Historically, freedom of speech has been justified as part of a system for resolving disputes without resort to actual violence. Acceptance of freedom of speech is a way to live with genuine conflict among points of view (which has always existed) without resorting to coercive force.
I’ve made this point so many times in my career, in so many different ways, that someone made a graphic about the way I once put it on a TV show.
It’s not surprising that free speech in a democracy can be very heated, when that protection covers people’s most sincerely held religious beliefs and their opinions about matters of life and death.
Iona reminded me how I put this in my first book:
The idea that we should campaign against hurtful speech among adults arises from a failure to understand that free speech is our chosen method of resolving disagreements, using words rather than weapons. Open debate is our enlightened means of determining nothing less than how we order our society, what is true and what is false, what wars we should fight, what policies we should pass, whom we should put behind bars for the rest of their lives, and who gets to control our government. This is a deadly serious business.
Being a citizen in a democratic republic is supposed to be challenging; it’s supposed to ask something of its citizens. It requires a certain minimal toughness—and commitment to self-governing—to become informed about difficult issues and to argue, organize and vote accordingly. As the Supreme Court observed in 1949, in Terminiello v. Chicago, speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
The only model that asks nothing of its citizens in terms of learning, autonomy and decision-making is the authoritarian one. By arguing that freedom from speech is often more important than freedom of speech, advocates unwittingly embrace the nineteenth-century (anti-)speech justification for czarist power: the idea that the Russian peasant has the best kind of freedom, the freedom from the burden of freedom itself (because it surely is a burden).
See, for example, Dangerous Ideas: A Brief History of Censorship in the West, from the Ancients to Fake News, by Eric Berkowitz.
Assertion: Free speech is the tool of the powerful, not the powerless.
Answer: The powerful do well under virtually any system of government. They’re not the ones who need freedom of speech. Its purpose is precisely to protect minority opinions and those who are unpopular with powerful people.
For most of history, the rich and powerful were protected by their wealth and power. Then, when democracies first emerged, the majority set the laws, and, because of that, their majority positions were protected by law. You only need a separate concept of freedom of speech or a law like the First Amendment to protect people, ideas and arguments that are not already otherwise protected by the right to vote or some other power.
The ones who enforce the rules, are, by definition, powerful. In a country with strong protections for freedom of speech, the powerful are barred from using the legal system to attack the powerless for their speech. If you empower the government to censor, you are giving the powerful more power.
The idea that we can trust them to use that power to defend the powerless is not borne out by history. If you want to give whoever is powerful censorship tools to protect the marginalized, do you trust that they will use it well? Do you trust what a Biden administration would do with that power? If so, do you trust what the next Trump would do with that power? A good intellectual exercise before passing a new law is to consider how your worst enemy would use that law—and thinking about that is even more important when imagining restrictions on free speech.
Assertion: The right to free speech means the government can’t arrest you for what you say; it still leaves other people free to kick you out.
Answer: No, the popular xkcd cartoon below is wrong. The First Amendment limits what the government can do, but freedom of speech is something much bigger than that.
This cartoon is often used to dismiss free speech arguments, but it is wrong: it not only confuses First Amendment law with freedom of speech, it doesn’t even get the First Amendment right.
The concept of freedom of speech is a bigger, older and more expansive idea than its particular application in the First Amendment. A belief in the importance of freedom of speech is what inspired the First Amendment; it’s what gave the First Amendment meaning, and what sustains it in the law. But a strong cultural commitment to freedom of speech is what maintains its practice in our institutions—from higher education, to reality TV, to pluralistic democracy itself. Freedom of speech includes small l liberal values that were once expressed in common American idioms like to each his own, everyone’s entitled to their opinion and it’s a free country. These cultural values appear in legal opinions too; as Justice Robert H. Jackson noted in West Virginia State Board of Education v. Barnette, “Compulsory unification of opinion achieves only the unanimity of the graveyard.”
While the United States Constitution limits only governmental behaviour on its face, its application sometimes requires the government to protect you from being censored by other citizens. For example, the government has a duty to protect you from being attacked by a hostile mob that doesn’t like your ideas or having your public speech disrupted by a heckler’s veto.
The First Amendment also bars government officials from punishing your speech in many ways that don’t rise to the level of arresting you. To give just one example, since administrators at state colleges are government actors, they can’t tear your flyer from a public message board because they don’t like what it says.
A belief in free speech means you should be slow to label someone as utterly dismissible for their opinions. Of course you can kick an asshole out of your own house, but that’s very different from kicking a person out of an open society or a public forum. The xkcd cartoon is often used to let people off the hook from practicing the small d democratic value of listening.
Read more: “What’s the Best Way To Protect Free Speech? Ken White and Greg Lukianoff Debate Cancel Culture,” by Ken White and Greg Lukianoff, Reason.
Assertion: But you can’t shout fire! in a crowded theatre.
Answer: Anyone who says “you can’t shout fire! in a crowded theatre” is showing that they don’t know much about the principles of free speech, or free speech law—or history.
This old canard, a favourite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations. People have been using this cliché as if it had some legal meaning, while First Amendment lawyers roll their eyes and point out that it is, in fact, as Alan Dershowitz puts it, “a caricature of logical argumentation.” Ken White has already penned a brilliant and thorough takedown of this misconception. Please read it before proclaiming that your least favourite language is analogous to shouting fire in a crowded theatre.
The phrase is a misquotation of an analogy made in 1919 Supreme Court opinion that upheld the imprisonment of three people—a newspaper editor, a pamphlet publisher and a public speaker—who argued that military conscription was wrong. The court said that anti-war speech in wartime is like “falsely shouting fire in a theatre and causing a panic,” and it justified the ban with a dubious analogy to the longstanding principle that the First Amendment doesn’t protect speech that incites people to physical violence. But the Supreme Court abandoned the logic of that case more than 50 years ago. That this trope originated as a justification for what has long since been deemed unconstitutional censorship reveals how useless it is as a measure of the limitations of rights. And yet, the crowded theatre cliché endures, as if it were some venerable legal principle.
Oh, and notice that the court’s objection was only to “falsely shouting fire!”: if there is, in fact, a fire in a crowded theatre, please let everyone know.
Assertion: The arguments for freedom of speech are outdated.
Answer: John Stuart Mill’s central arguments in On Liberty remain undefeated, including one of his strongest arguments in favour of freedom of speech—Mill’s trident—of which I have never heard a persuasive refutation.
Mill’s trident holds that, for any given belief, there are three options:
- You are wrong, in which case freedom of speech is essential to allow people to correct you.
- You are partially correct, in which case you need free speech and contrary viewpoints to help you get a more precise understanding of what the truth really is.
- You are 100% correct. In this unlikely event, you still need people to argue with you, to try to contradict you, and to try to prove you wrong. Why? Because if you never have to defend your points of view, there is a very good chance you don’t really understand them, and that you hold them the same way you would hold a prejudice or superstition. It’s only through arguing with contrary viewpoints that you come to understand why what you believe is true.
Assertion: Hate speech laws are important for reducing intolerance, even if there may be some examples of abuse.
Answer: Since the widespread passage of hate speech codes in Europe, religious and ethnic intolerance there has gone up. During the same period, ethnic and religious tolerance has improved in the United States.
At least a dozen Western European countries have hate speech laws, many of which run counter to their legal or historical commitments to free speech. But even though those laws have been on the books for years, by most measures Western Europe is less tolerant than the United States.
Western Europe as a whole scores 24% on the antisemitism index, meaning about 24% of the population harbours antisemitic attitudes, even though many of their hate speech laws explicitly prohibit Holocaust denial. In the United States, with no such laws, the antisemitism index is ranked at 10%.
If it were true that hate speech laws reduce intolerance, we would expect to see fewer hate crimes where such laws exist. Yet, in 2019, in the United States, there were 2.61 hate crimes per 100,000 people; in Denmark, there were 8.08 per 100,000 people; in Germany, 10.34; and in the United Kingdom, a whopping 157.67.
Nor has restricting hate speech prevented the spread of intolerance. In 1986, the UK passed a law against “words or behaviour … likely to stir up racial hatred”; yet, in the 1990s, racial tolerance decreased. Despite having hate speech laws since the 1980s, Germany is experiencing increased islamophobia and antisemitism. France passed its Gayssot Act outlawing Holocaust denial in 1990, yet as recently as 2019 it held a 17% antisemitism index score.
And I don’t just believe that cracking down on hate speech failed to decrease intolerance, I think there is solid grounds to believe that it helped increase it. After all, censorship doesn’t generally change people’s opinions, but it does make them more likely to talk only to those with whom they already agree. And what happens when people only talk to politically similar people? The well documented effect of group/political polarization takes over, and the speaker, who may have moderated her belief when exposed to dissenting opinions, becomes more radicalized in the direction of her hatred, through the power of group polarization.
Assertion: Free speech is nothing but a conservative talking point.
Answer: Free speech is neither a conservative nor liberal idea. It is an eternally radical idea.
In our hopelessly polarized society, too many people begin by asking, So, is free speech a conservative or progressive idea? Is it right-wing or left-wing? If the answer is left-wing, throngs on the right assume it can be ignored. If the answer is right-wing, many on the left feel absolved from having to take it seriously. At various points—even in recent history—both major political parties in the United States have claimed to represent free speech at the same time as both have been extremely hostile to free speech.
True support for free expression—especially extreme political speech with which you disagree—is a rare and, indeed, historically radical idea. I think this point is so important that I even named my blog The Eternally Radical Idea.
Now for the lightning round: fast answers to a couple of common assertions.
Assertion: Restrictions on free speech are OK if they are made in the name of civility.
Answer: In certain settings, they can be reasonable, but, generally, what is civil is defined by the powerful or the majority. And they tend to see any speech that with which they simply disagree as uncivil, while seeing any uncivil speech with which they agree as righteous rage. See: On Liberty, John Stuart Mill.
Assertion: You need speech restrictions to preserve cultural diversity.
Answer: Few ideas are more culturally diverse than what counts as propriety, or what constitutes correct or acceptable speech. These ideas are different from country to country, from year to year, for men and women, and especially across class lines. Indeed, preserving diversity in an environment with many cultures requires, rather than forbids, a high tolerance for speech that adheres to different norms of propriety.
Assertion: Free speech is an outdated idea; it’s time for new thinking.
Answer: Censorship is a far older idea, as old as our species; free speech is comparatively the new kid on the block. As Nat Hentoff once wrote, quoting former Los Angeles Times editor Phil Kerby: “Censorship is the strongest drive in human nature; sex is a weak second.” See: Free Speech For Me—But Not For Thee, by Nat Hentoff.
Assertion: I believe in free speech, but not for blasphemy.
Answer: You cannot claim to believe in free speech and at the same time carve out an exception for blasphemy. That’s the whole ballgame. Ideas of freedom of speech came about precisely to address the tendency to label unorthodox views as heretical. See my article, “We Are All Blasphemers.”
Conclusion: More answers to come!
When I originally set out to make this list for Iona, I wanted to make it as comprehensive as possible and the answers nice and short. We got up to around 6,000 words before we realized maybe we should start with sort of a Part 1. So this is Part 1, and I’m going to be continuing the process of answering bad free speech arguments over at my blog The Eternally Radical Idea.
But, before I conclude, I want to highlight one last argument very briefly: free speech is valuable, first and foremost, because, without it, there is no way to know the world as it actually is. Understanding human perceptions, even incorrect ones, is always of scientific or scholarly value, and, in a democracy, it is essential to know what people really believe. This is my “pure informational theory of freedom of speech.” To think that, without openness, we can know what people really believe is not only hubris, but magical thinking. The process of coming to knowing the world as it is is much more arduous than we usually appreciate. It starts with this: recognize that you are probably wrong about any number of things, exercise genuine curiosity about everything (including each other), and always remember that it is better to know the world as it really is—and that the process of finding that out never ends.
Author’s note: I would like to thank Adam Goldstein, Sean Stevens, Ryne Weiss and Komi German from FIRE for helping put this together, and especially for gathering the comparative hate crime data from EU countries.
One would expect an attorney who cites case law to cite relevant case law. To say the 1969 Decision refutes the “fire in a crowded theater” without realizing that case was about, not creating a dangerous situation, but inciting unlawful behavior, is, to say the least, contemptible.
Those who call for limits on speech invariably want limits on someone else’s speech, never on their own. Why would anyone ever call for some external authority to limit their speech?
Therefore those who call for limits on speech must be confident that these limits will be applied to the speech of others, but not on their own speech.
And therefore it follows that calls for limits on speech can only come from those who are confident that they and their supporters have to power to enforce what they want, and that those who disagree do not.
Which is why claims that free speech is the property of the powerful fail.
I generally agree with the sentiment, but the idea that Europe is a hive of hate crime and antisemitism is misleading to say the least. The ‘antisemitism index’ is a really terrible, ideologically-driven measurement, and I would suggest that you never use it again. And the UK is famous for everything being a hate crime now, with 11 year old kids investigated for off-colour instagram comments.
This is one of the most stupid things I’ve ever read: “Iin 2019, in the United States, there were 2.61 hate crimes per 100,000 people; in Denmark, there were 8.08 per 100,000 people; in Germany, 10.34; and in the United Kingdom, a whopping 157.67.”
Desk-based ‘research’ by ignorant people clumsily misusing obviously wacky stats shows they don’t have the faintest clue about these societies, or about how to use stats.
If stupid people who haven’t a clue about the reality of other societies are going to publish such utter shite, don’t be surprised when you lose ground in this so-called campaign for so-called ‘liberalism’.
You seem to have good thoughts but but are easily frustrated or confused by the points which you’re attempting to counter.
it’s weird that in one paragraph you think that XKCD’s comic is equivocating 1st Amendment and free speech at large, then immediately confuse free speech at large with the right to same.
I haven’t seen one single person point out the obvious absurdity of the “speech is violence” crowd demanding a crackdown on “hate speech” when their own rhetoric is far more hateful and literally violent than most of the stuff they complain about, and would therefore qualify them as the ultimate speech criminals. In my opinion, this is a much more effective argument than naively hoping that if you just explain the virtues of free speech clearly enough you’ll make them see the light. We’re dealing with abusive sociopaths here, not rational intellectual opponents. We need to stop talking in high-minded idealistic abstractions and start (figuratively) bringing guns to the knife fight.
Overall a good summary of points which ought to be obvious, but somehow are not.
However, the following can’t go unchallenged:
“If it were true that hate speech laws reduce intolerance, we would expect to see fewer hate crimes where such laws exist.”
No, on the contrary, if more things are defined to count as hate speech/crimes then we would expect more hate speech/crimes to be recorded.
” “Yes, a strong distinction between the expression of opinion and violence is a *social construct*.” This means that as the assertion says, “certain speech is more akin to violence,”
Much depends on the meaning of the buzz-phrases Steven uses..
“speech is *more* akin to violence” than it is to *what*?
“distinction between the expression of opinion and violence is a *social construct* “.
More of a *social construct*, than other major distinctions? Which ones?
The first “assertion” you address is in desperate need of a clear answer because that assertion is often dangerously misinterpreted, just as you say. But you never address the assertion itself, only it’s misinterpretations. This harms your position. Your “Answer” immediately restates the assertion in a trivialized form that is obviously nuts. You then ignore your restatement and argue against other misinterpretations of the assertion. Finally, at the end, you admit that the assertion is correct: ““Yes, a strong distinction between the expression of opinion and violence is a social construct.” This means that as the assertion says, “certain speech is more akin to violence,” otherwise you would have said, “An absolute distinction is correct and that’s not a social construct.” So having admitted that “certain speech is more akin to violence,” what should be done? As you know we have always found ways, such as “fighting words” and “fire… Read more »